Mary Jane & You Managing HR Issues Post-Amendment 64 Curtis Graves, Esq.

Pop Quiz Employers in most Western countries drug test for marijuana a.True b.False

Pop Quiz The Coats v. Dish Network case states that employers may only terminate employees when there is evidence of on-the-job-impairment. a.True b.False

Pop Quiz Which was the first to require medical authorization for marijuana use: a.California b.Colorado c.District of Columbia

History Cannabis = marijuana and hemp Marijuana’s THC can exceed 20% Hemp THC is no more than 0.3%

History for more than 5,000 years Used as a fiber and an intoxicant

History Marihuana Tax Act –Andrew Mellon –William Randolph Hearst –DuPont family World War II

History Medical Marijuana California Colorado Montana New Mexico 17 others

Marijuana in Colorado Lawful Off-duty Activities

Legal Off-duty Activities DishNet case Plain language of Amendment 64

Schedule I Controlled Substances Three traits: High potential for abuse No currently accepted medical use in treatment in the United States Lack of accepted safety for use of the drug or other substance under medical supervision

Criteria for Accepted Medical Use Chemistry = known and reproducible Adequate safety studies Adequate and well controlled studies proving efficacy Drug is accepted by qualified experts Scientific evidence is widely available

Fun Facts About Marijuana Forms Effect in brain Potential for medical use

Federal Preemption What is it? Is it likely? What else can the federal government do?

Types of Testing Pre-employment Reasonable suspicion Post-accident Return to Duty/Follow-up Random

Reasonable Suspicion “some articulable basis for suspecting that the employee was using illegal drugs.” “reasonable grounds for suspecting that the search will turn up evidence of work-related drug use” “an articulable belief that an employee uses illegal drugs drawn from specific and particularized facts and reasonable inferences from those facts”

Reasonable Suspicion  Arrest or conviction for drug related offense  Abnormal or erratic behavior  Unexplained absences, no- calls/no-shows  Reliable information with independent corroboration  Evidence of tampering with prior test  Multiple, observable symptoms  Discovery of paraphernalia  Violence at work  Accidents

Methodologies Urinalysis Oral fluids Breathalyzer?

Physical Signs and Symptoms Marijuana Reddened Eyes (use of eye drops) Slowed Speech Distinctive Odor on clothes Lackadaisical, “I don’t care” attitude Chronic fatigue and lack of motivation Irritating cough, chronic sore throat

Conclusion